[Redacted], Irvin M., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Oct 4, 2021

Appeal No. 2020004850 (E.E.O.C. Oct. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Irvin M.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2020004850 Agency No. 63-2019-00483D DECISION Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 31, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues presented on appeal are (1) whether Complainant established that the Agency's proffered explanation for its actions was pretext to mask discrimination on the bases of sex and reprisal; and (2) whether Complainant established that he was subjected to a hostile work environment based on his protected classes, as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lead Census Field Manager (LCFM) at the Agency’s Rochester Area Census Office in Rochester, New York. On October 28, 2019, Complainant filed an EEO complaint, as amended, alleging that the Agency 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2020004850 2 discriminated against him and subjected him to a hostile work environment on the bases of sex (male, sexual orientation2) and reprisal for prior protected EEO activity when: 1. On August 1, 2019, Complainant’s first-level supervisor (S1) opened the outer door and held it open from the inside with his body, looked at Complainant and invited him through, which made it virtually impossible for Complainant to push the cart through the doorway without grazing past S1’s body with his body. 2. On August 17, 2019, S1 made an inappropriate joke regarding sexual orientation, awkwardly laughing as he reminisced about a pride parade that he (S1) had attended once years ago. 3. On September 12, 2019, S1 leaned into Complainant so close that Complainant could feel and smell S1’s breath on him, looking very deeply into his eyes, which made Complainant feel extremely uncomfortable in terms of S1’s proximity to him. 4. On September 20, 2019, S1 made disparaging comments towards Complainant; ran his eyes down his body in such a way that implied a homophobic slur; repeatedly told him that he, S1, did not have time to “babysit [Complainant]”; mumbled “Are you a real man or what?”; made physical gestures towards Complainant; made physical contact with Complainant by his pointing finger as he, S1, leaned over Complainant while he was seated in his chair and, when Complainant attempted several times to stand back up, S1 blocked him from doing so. At this time, Complainant felt unsafe, as if S1 was about to strike out at him with his hand. Complainant then stepped out of the office and yelled out to office staff for help, letting them know that he was feeling threatened by S1. 5. Complainant lost his position as LCFM at the Rochester work location. 6. Complainant was terminated, effective February 16, 2020. Following the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). Therein, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 2 In Bostock v. Clayton County, the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep't of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2020004850 3 The Agency specifically found, with regard to claims 1-4, that there was no evidence that the conduct actually occurred towards Complainant as alleged. In so finding, the Agency noted that Complainant acknowledged that there were no witnesses to the events alleged in claims 1-4. The Agency also observed that there were no contemporaneous notes regarding the alleged sexual advances by S1 nor any other documentary or testimonial evidence in the record to sufficiently support Complainant’s claims of a hostile work environment. Moreover, the Human Resources (HR) department conducted a sexual harassment investigation, which found no evidence to support Complainant’s claims of a hostile work environment. The Agency concluded that Complainant did not show that S1’s actions towards him were severe or pervasive enough to rise to the level of a hostile work environment. The Agency noted, for example, with regard to claim 1, that Complainant acknowledged that he was able to pass through the doorway without his body grazing S1. The Agency noted that even assuming that S1 did make the alleged comment regarding the pride parade, it appeared to be an isolated, one-time comment that did not amount to unlawful harassment. As for claim 4, the Agency noted that Complainant did not allege any sexual advances. With respect to claims 5 and 6, the Agency found that it articulated legitimate, nondiscriminatory reasons for its actions, which Complainant did not establish were pretextual. According to the Agency, Complainant was allowed to work remotely during the sexual harassment investigation into S1’s alleged conduct and instructed to return to work when the investigation was completed. When the investigation ended, finding no evidence to support Complainant’s hostile work environment claims, the Agency stated that he refused to return to work. Complainant was terminated, explained the Agency, because he continued in remain in Absent without Leave (AWOL) status. Moreover, noted the Agency, Complainant declined to return to work even though he was assigned away from S1’s supervision during that time. The Agency concluded that Complainant did not show that its actions were motivated by discriminatory or retaliatory animus. CONTENTIONS ON APPEAL Complainant did not file a brief on appeal specifically addressing the Agency’s reasoning for its decision finding no discrimination or harassment. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 2020004850 4 ANALYSIS AND FINDINGS Disparate Treatment (Claims 5 and 6) To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp, v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co, v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on sex and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions regarding claims 5 and 6. The Assistant Regional Census Manager (ARCM) explained that Complainant was allowed to work remotely during the Agency’s investigation into Complainant’s claims of harassment. Report of Investigation (ROI), at 248- 249. The ACRM explained, however, that Complainant refused to return to work after the investigation found no evidence to support Complainant’s claims of harassment. Id. The ARCM explained that Complainant was terminated because he continued to be in AWOL status after being instructed to return to work. Id. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. Upon review, we find that Complainant has not established that the Agency's reasons for its actions were pretext for discriminatory animus based on his sex or EEO activity. In so finding, Complainant does not dispute that he did not return to work after being instructed to do so following the completion of the harassment investigation, finding no evidence of harassment by S1. Even when assigned to another supervisor, Complainant still refused to return to work. Id. at 149. We can find no evidence that management took it actions towards Complainant based on his protected classes. Consequently, Complainant has not met his burden to establish that the Agency was motivated by discriminatory or retaliatory animus in terminating his employment. Hostile Work Environment As an initial matter, we note that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), claims 5 and 6 may not be included in Complainant's claim of hostile work environment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). 2020004850 5 A prima facie case of hostile work environment encompassing such claims is precluded by our finding that Complainant failed to establish that the events in claims 5 and 6 were discriminatory. See Oakley v. U.S Postal Serv., EEOC Appeal No. 01982923 (Sep. 21, 2000). With regard to claims 1-4, to establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris, at 510 U.S. at 17, 21. Therefore, to prove his claims of harassment, Complainant must establish that he was subjected to conduct that was either so severe or pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of his protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. As Complainant chose not to request a hearing, we do not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Here, Complainant asserted that due to his protected classes, he was subjected to a hostile work environment based on several incidents where S1 engaged in unwelcome conduct that seemed adverse, disruptive, and harmful to him. However, we agree with the Agency that Complainant has not established, by a preponderance of the evidence, that he was subjected to a discriminatory hostile work environment. We find that Complainant failed to show that the incidents and conduct actually occurred as alleged. Complainant presented no corroborating evidence and all identified witnesses in the record denied witnessing any of the alleged harassing conduct. Additionally, management investigated the alleged incidents, but found that Complainant's claims were unsubstantiated and determined that no disciplinary action was warranted. As such, we find that Complainant has not established that he was subjected to discrimination or a hostile work environment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding no discrimination. 2020004850 6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). 2020004850 7 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations October 4, 2021 Date